IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. Plaintiff, No. 17-cr JB MOTION TO DISMISS COUNTS 1 AND 5 OF THE INDICTMENT

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1 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, vs. Plaintiff, No. 17-cr JB KIRBY CLEVELAND, Defendant. MOTION TO DISMISS COUNTS 1 AND 5 OF THE INDICTMENT Defendant Kirby Cleveland respectfully moves the Court to dismiss Counts 1 and 5 of the Indictment against him. Count 1 charges Mr. Cleveland with killing a federal officer, contrary to 18 U.S.C. 1114, and Count 5 charges him with using a firearm during and in relation to that crime. [Doc. 20.] Because the alleged victim of these crimes was not a federal officer and was not killed while engaged in, or on account of, the performance of official duties, Counts 1 and 5 must be dismissed. FACTUAL BACKGROUND On April 12, 2017, a federal grand jury charged Kirby Cleveland by indictment with murder of a federal officer, contrary to 18 U.S.C and 1114 (Count 1); felony murder, contrary to 18 U.S.C (Count 2); first-degree murder, contrary to 18 U.S.C (Count 3); escape, contrary to 18 U.S.C. 751 (Count 4); three counts of using a firearm during and in relation to a crime of violence, contrary to 18 U.S.C. 924(c)(1) (Counts 5-7); and felon in possession of a firearm, contrary to 18 U.S.C. 922(g)(1) (Count 8). [Doc. 20.] All charges (except escape) stem from the shooting

2 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 2 of 12 death of Houston Largo, an officer employed by the Navajo Police Department (NPD), on March 11, On January 26, 2018, the United States filed a Notice of Intent to Seek the Death Penalty should Mr. Cleveland be convicted of felony murder. [Doc. 39.] According to the Criminal Complaint filed March 14, 2017, Officer Largo was shot while responding to a domestic violence call. [Doc. 1.] It is undisputed that, at the time of his death, Officer Largo was a Navajo Nation tribal officer. See Exhibit A (Officer Largo s NPD Commission). Upon information and belief, he did not work for the Bureau of Indian Affairs (BIA), and he did not have a BIA Special Law Enforcement Commission (SLEC). 1 DISCUSSION Count 1 of the Indictment charges Mr. Cleveland with murder of a federal employee, contrary to 18 U.S.C and 18 U.S.C [Doc. 20 at 1-2.] 18 U.S.C provides, in relevant part: Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished (1) in the case of murder, as provided under section 1111[.] The Indictment alleges that, as patrol officer employed by the Navajo Nation Division of Public Safety, Officer Largo was a federal employee at the time of his death. [Doc. 20 at 1 Although Officer Largo completed the training necessary to apply for a SLEC, he never obtained the commission. 2

3 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 3 of ] This is wrong as a matter of law. Officer Largo was not a federal employee and was not engaged in the performance of official duties of a federal officer. Upon information and belief, the United States is relying on Subsection 2804(f) of the Indian Law Enforcement Reform Act (ILERA), 25 U.S.C et seq., to establish Officer Largo s status as a federal officer. Subsection 2804(f)(1)(B) expands the scope of federal employees for purposes of 18 U.S.C It states: While acting under authority granted by the Secretary under subsection (a) of this section, a person who is not otherwise a Federal employee shall be considered to be-- (1) an employee of the Department of the Interior only for purposes of-- (B) sections 111 and 1114 of Title 18[.] Subsection (a) sets forth the procedures by which the Secretary of the Interior may enter into memoranda of agreement for the use (with or without reimbursement) of the personnel or facilities of a Federal, tribal, State, or other government agency to aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe that has authorized the Secretary to enforce tribal laws. Pursuant to such agreements, [t]he Secretary may authorize a law enforcement officer of such an agency to perform any activity the Secretary may authorize under section 2803 of this title U.S.C. 2804(a)(2). The ILERA delineates the authority of BIA and tribal police in Indian country in two important ways. First, it clarifies that the BIA s responsibility is the enforcement of 2 25 U.S.C sets forth the authority of law enforcement officers employed by BIA. 3

4 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 4 of 12 Federal law and, with the consent of the Indian tribe, tribal law. 25 U.S.C. 2802(c)(1); see also id (setting forth various specific law enforcement tasks the BIA is authorized to perform, which pertain to the enforcement of federal law and, where an Indian tribe... has authorized [the BIA] to enforce or carry out tribal laws, the laws of the tribe). Second, it authorizes the BIA to enter into self-determination agreements 3 with other law enforcement agencies including any Federal, tribal, State, or other government agency to aid the BIA in the enforcement of federal law. Id. 2804(a)(1). Under the ILERA, the enforcement of federal laws is the province of the BIA, while the enforcement of tribal laws is the province of the tribes, and each of these entities can opt to enlist the assistance of the other. BIA regulations promulgated pursuant to the ILERA track this distinction. They state, on the one hand, that BIA officers will enforce tribal laws only with the permission of the tribe, 25 C.F.R , and on the other hand, that the BIA has sole responsibility for enforcing federal law, except to the extent the BIA delegates this authority by issu[ing] law enforcement commissions to other Federal, State, local and tribal full-time certified law enforcement officers to obtain active assistance in enforcing applicable Federal criminal statutes, id With respect to such law enforcement commissions, the regulations state that [t]ribal law enforcement officers operating under a BIA contract or compact are not automatically commissioned as Federal officers; however, they may be commissioned on a case-by-case basis. Id (b). 3 These agreements are sometimes called 638 contracts, after the Public Law Number (93-638) of the legislation that authorized them before the ILERA was passed in

5 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 5 of 12 In 2013, the Navajo Nation entered a self-determination contract with the BIA pursuant to the ILERA for the use... of the personnel or facilities of [the Navajo Nation Police Department] to aid in the enforcement or carrying out in Indian country of [the] law[s] of... the United States. 25 U.S.C. 2804(a)(1). Self-Determination Contract (attached as Exhibit B) at 1. This contract governs the provision of law enforcement services on the Navajo Nation Reservation. Id. It incorporates an Annual Funding Agreement (Ex. B at 14), which is renewed annually. The Funding Agreement for January 1, 2017 through December 31, 2017, is attached as Exhibit C. The Funding Agreement, in turn, incorporates a Statement of Work (attached as Exhibit D). The Statement of Work indicates that, [s]ubject to the terms of the contract, the Annual Funding Agreement, and availability of funds, the Navajo Nation shall perform law enforcement activities as noted in the ILERA. Ex. D at 1. It further states that the BIA may commission any law enforcement officer as a Federal Law [Enforcement] Officer as set out in... the executed SLEC Agreement and the BIA-OJS [Office of Justice Services] SLEC policies in place when the [Annual Funding Agreement] is submitted each year. Id. at 6. The executed SLEC Agreement also referred to as a Deputation Agreement (attached as Exhibit E) thus serves to specify the terms under which Navajo Nation police officers enforce federal laws on the reservation. 4 It states that it is entered into 4 The exhibits to this motion were disclosed in discovery, with the exception of the Deputation Agreement. Exhibit E was an exhibit to a motion to dismiss filed in United States v. Tauz Abner Henderson, 3:18-cr DJH. Mr. Cleveland has asked the United States to disclose this 5

6 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 6 of 12 pursuant to the ILERA and serves as an Appendix to [the Self- Determination Contract], and that it is governed by the ILERA regulations set forth at 25 C.F.R. part 12. Ex. E at 2 3. Under the Deputation Agreement, the BIA may, in its discretion, issue special law enforcement commissions [SLECs] to law enforcement officers of another agency, upon the application of such officers. Id. at 2. Navajo Nation police officers carrying SLECs issued by the BIA have the power to enforce [a]ll federal laws applicable within Indian country, including the General Crimes Act, 18 U.S.C. 1152, and the Major Crimes Act, 18 U.S.C. 1153, consistent with the authority conveyed pursuant to Federal law through the issuance of commissions or other delegations of authority. Id. at 4. The Deputation Agreement further clarifies that a cross-deputized Navajo Nation police officer is only considered a federal employee for purposes of the Federal Tort Claims Act (FTCA) and 18 U.S.C. 111 & 1114 with respect to the enforcement of federal law: Id. at 7. 5 [A]ny Navajo Nation Division of Public Safety Law Enforcement Officer who is deputized by the Bureau of Indian Affairs Special Law Enforcement Commission will only be deemed an employee of the Department of the Interior for purposes of the Federal Tort Claims Act while carrying out those laws applicable in Indian Country as described in Section 3.A and Appendix A [which list only federal laws]. Therefore, such officer will not be deemed a federal employee under 25 U.S.C. 2804(f)(1) [which in turn references 111 & 1114], or for purposes of the FTCA with respect to enforcement of any other law except those enforceable in Indian country as described in Section 3.A and Appendix A. agreement in discovery and will supplement the record once it does so. 5 The reference to 18 U.S.C. 111 & 1114 is achieved through the citation to 25 U.S.C. 2804(f)(1), which, in turn, refers to both the FTCA and 18 U.S.C. 111 &

7 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 7 of 12 A. Officer Largo was not an officer or employee of the United States. It is undisputed that Officer Largo was a tribal police officer at the time of his death. He did not work for the BIA, and he did not possess an SLEC. Under the ILERA, the related regulations, and the Navajo Nation s Self-Determination Contract, he was therefore not an officer or employee of the United States. 18 U.S.C. 1114; see also Order [Doc. 50], United States v. Tauz Abner Henderson, 3:18-cr DJH (filed June 11, 2018) (unpublished) (attached as Exhibit F) (dismissing indictment charging assault on a federal officer given officer employed by the Navajo Nation did not hold a special law enforcement commission and therefore was not a federal officer for purposes of 18 U.S.C. 114). In Henderson, the defendant was charged with assaulting a Navajo Police Officer who responded to a domestic violence call. Ex. F at 1-2. Like Officer Largo in this case, the officer in Henderson was employed by the Navajo Nation and did not hold a special law enforcement commission. Id. at 3. After reviewing the applicable provisions of the ILERA, and related regulations, the district court dismissed the indictment. Because Officer Largo was not an officer of the United States, the Court lacks jurisdiction over Counts 1 and 5 of the Indictment, and those counts must be dismissed. See Fed. R. Crim. P. 12(b)(1) ( A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits. ); United States v. Olivas-Perea, 297 F. Supp. 3d 1191, 1204 (D.N.M. 2017) ( Pretrial motions that seek and result in dismissal of the case altogether but that can be decided, at least in the 7

8 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 8 of 12 circumstances of the case at hand, without deciding any disputed questions of fact about the circumstances of the alleged crime i.e., motions that involve only the taking of evidence that is entirely segregable from the evidence to be presented at trial also qualify under rule 12(b)(1). ) (quoting United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010) (Gorsuch, J.)); id. (courts may entertain motions that require it to answer only pure questions of law ). The ILERA authorizes the BIA to enter agreements with other law enforcement agencies including tribal ones to aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe that has authorized the Secretary to enforce tribal laws. 25 U.S.C. 2804(a). It further states that persons acting under authority delegated pursuant to 2804(a) are federal employees only for purposes of... sections 111 and 1114 of title 18. Id. 2804(f). Implementing regulations clarify that [t]ribal law enforcement officers operating under a BIA contract or compact are not automatically commissioned as Federal officers; however, they may be commissioned on a case-by-case basis. 25 C.F.R (b). Because this language distinguishes between tribal officers who are commissioned as federal officers and those who are not, it is clear the legislature only intended to grant federal officer status to tribal officers possessing special law enforcement commissions. See Boney v. Valline, 597 F. Supp. 2d 1167, 1177 (D. Nev. 2009) ( Because 25 C.F.R (b) makes a distinction between tribal law enforcement officers who are commissioned as federal officers and those who are not, noncommissioned tribal officer such as Defendant are not acting under the color of federal law. ); Trujillo v. United States, 313 F.Supp.2d 1146 (D.N.M. 2003) ( Nothing 8

9 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 9 of 12 suggests that the mere existence of a Public Law contract between BIA and a tribe for the provision of law enforcement services automatically confers federal law enforcement authority upon the officers in tribal police departments. ). The BIA has delegated law enforcement authority to the Navajo Nation in the form of a Self-Determination Contract that incorporates a Deputation Agreement calling for the issuance of SLECs to tribal police officers, and specifying that tribal officers are federal employees under 25 U.S.C. 2804(f)(1) i.e., for purposes of the FTCA and 18 U.S.C. 111 & 1114 when, and only when, enforcing federal law. Ex. E at 7. See Trujillo, 313 F. Supp. 2d at 1150 (whether tribal officers were United States law enforcement officers for purposes of the FTCA depends on the particular contract under which the services are carried out ). It cannot be the case that all Navajo Nation police officers are federal officers by virtue of the mere existence of a contractual delegation of federal authority, when the contract itself specifies only a limited class of tribal officers who have federal status (and then only in limited circumstances): SLEC bearers enforcing federal law. To conclude otherwise would require reading the Deputation Agreement out of existence. In any event, the Deputation Agreement is clear that its terms are governed by the ILERA and its implementing regulations (at 25 C.F.R. part 12). 6 See Ex. E at 2 3. Those regulations state clearly that [t]ribal law enforcement officers operating under a BIA contract or compact are not automatically commissioned as Federal officers; however, 6 The Statement of Work, also incorporated into the Self-Determination Contract, is clear on this point, too: it states that Navajo Nation officers shall perform law enforcement activities as noted 9

10 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 10 of 12 they may be commissioned on a case-by-case basis. 25 C.F.R (b) (emphasis added). This language unequivocally undermines any notion that a contractual delegation of federal authority automatically confers federal employee status; to the contrary, such status can be conferred only on a case-by-case basis. Id. Therefore, under the terms of the Deputation Agreement, for an officer to be an employee under 2804(f)(1), the officer must possess a Special Law Enforcement Commission and must be enforcing Federal law within Indian country. Order [Doc. 50] at 8, United States v. Tauz Abner Henderson, 3:18-cr DJH (filed June 11, 2018) (unpublished) (attached as Exhibit F). B. Officer Largo was not killed while engaged in or on account of the performance of federal duties. Section 1114 applies to the killing of officers or employees of the United States and federal agencies while they are engaged in or on account of the performance of official duties, as well as people assisting such officers with those duties. 18 U.S.C Thus, even assuming a non-deputized Navajo Nation police officer could be considered a federal officer or employee under 1114 merely because of the existence of the Self-Determination Contract, that person like any full-time BIA officer is covered by 1114 only while engaged in the official duties of a federal employee. For this additional reason which is jurisdictional, and can be resolved with limited pretrial factfinding the indictment must be dismissed. See, e.g., Olivas-Perea, 297 F. Supp. 3d at in the ILERA. Ex. D at 1. 10

11 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 11 of 12 According to the Complaint [Doc. 1], Officer Largo was shot while responding to a domestic violence call. Domestic violence offenses are quintessentially local, tribal matters. There is therefore no basis for concluding that Officer Largo was killed while engaged in, or assisting others engaged in, official federal duties. CONCLUSION Tribal law enforcement in authority is inherent, not contractually delegated by the grace of the federal government. Tribal authority to enforce federal law, on the other hand, must be delegated on a case-by-case basis, and there was no such delegation here because Officer Largo had no SLEC. The government will inevitably assert that denying this motion is necessary to protect tribal police officers from acts of violence by other tribal members. This is an inaccurate distraction from the unambiguous regulatory, contractual, and statutory barriers to the government s untested theory for jurisdiction in this case. The killing of tribal officers can be charged under 18 U.S.C and 18 U.S.C (the Major Crimes Act), as it was in Counts 1 and 3 of the Indictment. [Doc. 20.] For the reasons explained above, the indictment must therefore be dismissed with prejudice. Respectfully submitted, /s/ Theresa M. Duncan Theresa M. Duncan Duncan Earnest, LLC 515 Granite NW Albuquerque, NM

12 Case 1:17-cr JB Document 72 Filed 09/24/18 Page 12 of 12 Donald F. Kochersberger III BUSINESS LAW SOUTHWEST LLC 320 Gold Ave. SW, Suite 610 Albuquerque, New Mexico (505) (Voice) (505) (Facsimile) ( ) Attorneys for Kirby Cleveland CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 24th day of September 2018, I filed the foregoing pleading electronically through the CM/ECF system, which caused counsel for Plaintiff and Defendants to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Theresa M. Duncan Theresa M. Duncan 12